Jeremy D. Morley concentrates on International Family Law. The firm works with clients around the world from its New York office, with a global network of local counsel.
Mr Morley is the author of "International Family Law Practice", the leading treatise on international family law in the U.S., and "The Hague Abduction Convention", published by the American Bar Association. He is a Fellow of the International Academy of Matrimonial Lawyers and a former law professor.

Thursday, August 21, 2014

India: A Safe Haven for International Child Abduction

India is a safe haven for international
child abductors.

India is not a party to the Hague Convention on the Civil Aspects of
International Child Abduction. The Convention is the fundamental international
treaty that protects the rights of abducted children and serves to have them
returned promptly to the country of their habitual residence. It has been
adopt4d by more than 90 countries. India’s Law Commission expressly recommended
that India should adopt the treaty but the Indian Law Ministry opposed it on
the ground that it
would hurt Indian parents who take their children to India.

Furthermore, no Indian legislation
sets forth any helpful law on this issue.

In recent years there have been more
child abductions from the United States to India than to any other non-Hague
country.

The law in India was previously
settled that foreign children taken by a parent to India without the consent of
the other parent would normally be returned to their country of residence or
nationality. However more recent decisions of courts in India changed that rule
and held that foreign custody orders are merely items to consider as part of an
overall custody review. The Law Commission reported that the Indian courts had
followed an inconsistent and unpredictable pattern in international child
abduction cases, which would make foreign judges wary of allowing child visits
to India, and which should be remedied by signing the treaty. In its most recent
ruling the Supreme Court of India capped five years of litigation with a ruling
that ordered the return of a child to the United States, but subject to
conditions that were difficult to fulfill. However, the abducting mother had –
most unusually -- failed to start a custody case in India and the case would
otherwise have taken an entirely different course.

The court system in India is
extremely slow and inefficient so that an abductor has ample time to create
“facts on the ground” in terms of getting the child sufficiently settled into
life in India as to justify an Indian court in ultimately deeming that it is
best to keep the child in India.

As a consequence, courts outside India should be extremely wary about allowing
parents to take children for temporary visits to India over the objections of
the other parents since there is a great likelihood that parents who wrongfully
retain children in India will get away with their wrongful conduct scot-free in
India.

In Katare v. Katare, 283 P. 3d 546 (Wash. 2013) the Supreme Court of
Washington State, en banc, upheld in
relevant part the trial court’s ruling in a case involving an American mother
and an Indian father. The trial court held that it was not convinced that there
was a serious threat that the father would abduct their children to India.
However, the potential consequences of any abduction to India were severe and
“irreversible.” Accordingly the court was warranted in imposing severe
limitations on the husband's residential time with the children, including
strict restrictions on the locations of such visitation, surrender of his
passport, notification of any change of his citizenship status, and prohibition
of his holding or obtaining certain documents (i.e. passports, birth
certificates) for the children.

In several cases in several U.S.
states and Canadian provinces, the author has testified as an expert witness on
this issue.

It is the author’s opinion that a court in a case concerning
the prevention of international parental child abduction must weigh both the
risk of abduction presented by the facts concerning the specific parent and the
risk that is presented by the specific country. The more certain it is that the
country to which the child might be taken is a fully compliant Hague Convention
treaty partner with an effective legal system, the more evidence that the
individual parent is likely to be an abductor is required.

Conversely, when the foreign country
is one such as India -- which is not a Hague partner, has an ineffective, slow
and even corrupt legal system and is a proven safe haven for international
child abductors -- far less evidence of the parent being a likely international
child abductor is required to be established in order to justify – and require
– a court to take effective steps to prevent a potential child abduction.

In the latter case, because the risk
is so great, a parent should normally be barred from taking a child to India if
there is any significant evidence that the child might not be returned.

About Me

Jeremy D. Morley was admitted to the New York Bar in 1975 and concentrates on international family law. His firm works with clients around the world from New York , with a global network of local counsel. Mr. Morley is the author of "International Family Law Practice," the leading treatise on international family law in the United States. He is also the author of “The Hague Abduction Convention: Practical issues and Procedures for Family Lawyers.” He is the former co-chair of the International Family Law Committee of the International Law Section of the ABA. He is a member of the International Academy of Matrimonial Lawyers. He was born in Manchester, England and has taught in law schools in the United States, Canada and England. Mr. Morley frequently lectures on international family law topics to the judiciary, bar associations and others. Mr. Morley is frequently asked to appear as an expert witness on international child abduction prevention and recovery issues. Mr. Morley has been a frequent guest on television and radio shows on the topic of international child abduction and international divorce law and has been featured in the print media on numerous occasions.